We have moved
Effective 1 July 2024 our Perth office has relocated to: Level 14 QV1 Building, 250 St Georges Terrace, Perth
All other contact information remains unchanged.
Effective 1 July 2024 our Perth office has relocated to: Level 14 QV1 Building, 250 St Georges Terrace, Perth
All other contact information remains unchanged.
After two years of the COVID-19 pandemic and a raft of temporary and permanent changes to the Corporations Act 2001 (Cth) (Corporations Act) affecting the ability to hold hybrid and virtual meetings and sending notices of meeting electronically, we set out in this article a summary of where things currently stand for companies due to hold their annual general meeting (AGM) in the coming months.
Hybrid and wholly virtual meetings
Hybrid AGMs with both a physical venue and online participation can still be held. However, companies can now only hold a wholly virtual AGM if the company’s constitution expressly permits or requires this. This means that companies who do not already have an express provision in their constitution will not be able to hold a wholly virtual AGM this year. In such cases, we strongly recommend that shareholder approval be sought to amend the constitution at this year’s AGM to allow flexibility for future meetings.
Quorum
A person who attends a meeting, whether at a physical venue or by using virtual meeting technology, is taken for all purposes to be present in person at the meeting while so attending.
Shareholder participation
Shareholders, as a whole, must be given a reasonable opportunity to participate. This includes holding the meeting at a reasonable time and place and ensuring that shareholders can ask questions and make comments both orally and in writing. To comply with this requirement for hybrid and virtual meetings, larger companies may consider engaging a dedicated platform provider and smaller companies may rely on free online conferencing software. In both cases, companies should establish contingency plans in the event of technology failure during the meeting.
Sending meeting documents
Companies are permitted to send notices of meeting and meeting related documents to shareholders either physically or electronically (either by attaching them to an email or providing a link to them) regardless of the format of the meeting. However, members can elect to receive those materials in their preferred format (i.e., physical or electronic copies), provided the election is made within the required timeframes under the Corporations Act. Companies and their share registries will need to keep track of what elections have been made by shareholders and ensure shareholder email addresses are held if documents are to be sent electronically. In addition, each financial year the company must notify shareholders of their right to make these elections (this can be done via the company’s website). Shareholders also have the right to make ad hoc requests to be sent particular documents in physical form or electronically (again, subject to certain rules on timing) and can also elect not to receive annual reports.
Substantive resolutions by poll
Substantive resolutions for listed entities will need to be conducted by way of a poll, in line with ASX corporate governance requirements for listed entities.
Signing proxy forms
A document relating to a meeting, such as a proxy form, may be signed electronically if the method identifies the person signing, their intention in respect of the information recorded in the document and the method is reliable as appropriate for the purposes for which the information was recorded.
Independent scrutineer
Shareholders of a listed company with at least 5% of the votes can request to have an independent person appointed to observe the conduct of a poll, or to scrutinise the outcome of a poll, and prepare a report.
Practical tips and reminders
As always, we are happy to assist all clients with preparing or reviewing AGM materials for the upcoming season so please contact us in our Perth office or Melbourne office for further advice by clicking here.